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Department of Corrections Has Right to Force-Feed Inmate on Hunger Strike

The Court of Appeals determined that the state has the right to force-feed an inmate (Dorsey) who is on a hunger strike, once the inmate’s life is in jeopardy.  The opinion by Judge Graffeo is lengthy and deals with preservation requirements, the mootness doctrine, as well as the constitutional rights implicated in the refusal of medical care.  Judge Lippman dissented, addressing primarily his view that the issues discussed on appeal had not been preserved and the “exception to mootness” doctrine had been misapplied.  Judge Graffeo wrote:

It is therefore evident that DOCCS’ decision to intervene when Dorsey’s hunger strike progressed to the point that his life was in jeopardy was reasonably related to legitimate penological objectives. Taking action to interrupt an inmate hunger strike not only serves to preserve life and prevent a suicide but also to maintain institutional order and security. There was no way that DOCCS could effectuate these interests other than to seek a judicial order permitting feeding by nasogastric tube — less intrusive means had been attempted without success. Dorsey had been moved to the infirmary and medical staff within the facility had repeatedly counseled him in an attempt to get him to voluntarily abandon the hunger strike (as he had done before) to no avail. Matter of Bezio v Dorsey, No 65, CtApp, 5-2-13

 

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Conviction Reversed on Ineffective Assistance of Counsel Grounds

After reviewing a litany of errors made by defense counsel which demonstrated a lack of familiarity with the procedural and evidentiary principles underlying a criminal prosecution, the Court of Appeals, in a full-fledged opinion by Judge Pigott, reversed defendant’s conviction because of the ineffectiveness of his counsel:

In order to sustain a claim of ineffective assistance of counsel, a court must consider whether defense counsel’s actions at trial constituted “‘egregious and prejudicial’ error such that defendant did not receive a fair trial” ….. While a single error by defense counsel at trial generally does not constitute ineffective assistance …, courts must examine defense counsel’s entire representation of defendant …. “[T]he claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole” …. “Defense counsel are charged with managing the day-to-day conduct of defendant’s case and making strategic and tactical decisions” …. Counsel’s performance in fulfilling this role is “objectively evaluated” …”to determine whether it was consistent with strategic decisions of a ‘reasonably competent attorney'” ….  While defense counsel’s errors in thiscase individually may not constitute ineffective assistance, “the cumulative effect of defense counsel’s actions deprived defendant of meaningful representation” …. Defense counsel’s actions throughout this case showed an unfamiliarity with or disregard for basic criminal procedural and evidentiary law. At the very least, a defendant is entitled to representation by counsel that has such basic knowledge, particularly so, when that defendant is facing a major felony with significant liberty implications. Considering the seriousness of the errors in their totality, we conclude that defendant was deprived of a fair trial by less than meaningful representation. People v Oathout, No 81, CtApp, 5-2-13

 

Procedure for Sentencing a Second Felony Offender Not Followed

The Second Department sent the matter back for resentencing because of the sentencing court’s failure to follow the statutory procedure for adjudicating defendant a second felony offender:

As the People correctly concede, the sentencing court adjudicated the defendant a second felony offender (see Penal Law § 70.06) absent any indication of compliance with the procedural requirements of CPL 400.21, or any showing that the defendant was given notice and an opportunity to be heard …. Accordingly, we remit the matter to the County Court, Suffolk County, for resentencing in accordance with the mandates of CPL 400.21 ….  People v Puca, 2013 NY Slip Op 03114, 2nd Dept, 5-1-13

 

Failure to Cooperate with Probation Department Is Valid Reason for Enhanced Sentence

The Second Department determined defendant’s failure to cooperate with the probation department in violation of his plea agreement was a valid ground for an enhanced sentence:

The condition of the defendant’s plea that he cooperate with the probation department was explicit and objective, and was acknowledged, understood, and accepted by the defendant as part of the plea agreement …. The defendant’s violation of that condition, by refusing to be interviewed by the probation officer, allowed the Supreme Court to impose the enhanced sentence.  People v Patterson, 2013 NY Slip Op 03113, 5-1-18

 

Procedure for Sentencing as Persistent Felony Offender Not Followed

In sending the matter back for resentencing, the Second Department noted that the statutory procedure for sentencing as a persistent felony offender had not been followed:

The Supreme Court erred in failing to provide proper notice of the persistent felony offender hearing pursuant to CPL 400.20(1)-(4), and to set forth specific reasons supporting its determination to sentence the defendant as a persistent felony offender (see Penal Law § 70.10[2]…). People v Brown, 2013 NY Slip Op 03111, 2nd Dept, 3-1-13

 

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Evidence of Physical Injury (re Assault) Insufficient

In reversing an Assault 3rd conviction, the Second Department determined, under a weight of the evidence analysis, the proof of “physical injury” was insufficient:

Upon reviewing the record here, we find that the verdict of guilt was against the weight of the evidence, since the evidence presented at trial did not establish, beyond a reasonable doubt, that the complainant sustained a “physical injury” within the meaning of Penal Law § 10.00(9). Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). The complainant testified that he sustained bruising and scraping to his right arm, neck, and back, but he did not seek any medical treatment or miss any work. The complainant also provided no details that would corroborate his subjective description of pain, nor did he take any pain medication. Accordingly, there was insufficient evidence that the complainant suffered a “physical injury”…, and the judgment must be reversed and the indictment dismissed. People v Boley, 2013 NY Slip Op 03109, 2nd Dept, 5-1-13

 

Sentencing Court Need Not Inform Defendant of Possible Consequences of Violating Postrelease Supervision

In finding that a defendant need not be informed at sentencing of the consequences of violating postrelease supervision, the Court of Appeals, in a full-fledged opinion by Judge Read, explained:

We have repeatedly held that a trial court “must advise a defendant of the direct consequences of [a] plea,” but “has no obligation to explain to defendants who plead guilty the possibility that collateral consequences may attach to their criminal convictions” * * *. By contrast, collateral consequences are “peculiar to the individual and generally result from the actions 104 taken by agencies the court does not control”* * *. … [T]he consequences of violating postrelease supervision are uncertain at the time of the plea, depending, as they do, upon how a defendant acts in relation to a condition tailored to his circumstances and imposed in the future. Thus, such consequences are properly described as “peculiar” to the individual. Second, the New York State Board of Parole — not the courts — is responsible for establishing the conditions of a defendant’s postrelease supervision * * *. In sum, the ramifications of a defendant’s violation of the conditions of postrelease supervision are classic collateral consequences of a criminal conviction – – i.e., they are “peculiar to the individual” and the product of “actions taken by agencies the court does not control”… . People v Monk, No 77, CtApp, 4-30-13

 

Okay to Close Portion of Trial to Public to Protect Safety of Undercover Officers

As the Court of Appeals explained, in a full-fledged opinion by Judge Graffeo, the issue and ruling:

“The primary issue in each of these buy-and-bust cases is whether the trial court properly closed the courtroom to the general public during the testimony of undercover officers. We conclude that the limited closures comported with Sixth Amendment public trial principles…”. In each of the three cases before the court, the trial judge closed the trial to the public when the undercover officers testified to protect the officers’ safety. Whether the officers’ safety would be jeopardized by testimony in open court must be demonstrated in a hearing. The court explained the applicable law and findings as follows: The United States Supreme Court has explained that a courtroom closure must satisfy a four-part standard to comport with the requirements of the Sixth Amendment: “[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure” (Waller v Georgia, 467 US 39, 48 [1984]). Only the first prong (overriding interest) and third prong (reasonable alternatives) are at issue in these cases. * * * …[T[he trial court in each instance held a … hearing and made a particularized finding that requiring the undercover officers to testify in open court would create a genuine risk to their physical safety. The trial courts limited the closures to the portions of the proceedings directly implicating the overriding interest — the undercover officers’ safety — by ordering the courtrooms closed only for the duration of the officers’ testimony. People v Echevarria, et al, Nos 59, 60, 61, CtApp, 4- 30-13

 

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Insufficient Foundation for Cross Examination About Witness’ Mental Health

In upholding the limits the trial court placed upon the cross-examination of a witness concerning the witness’ mental health history, the Fourth Department wrote:

A defendant may question a witness about his or her mental health or psychiatric history upon a showing that the witness’s “capacity to perceive and recall events was impaired by a psychiatric condition” …or that “such evidence would bear upon [the witness’s] credibility or otherwise be relevant” … . Here, we conclude that defendant failed to make the requisite showing that the witness in fact had a history of mental illness or that such evidence would bear upon her capacity to perceive or recall the events at issue …. Defense counsel’s statement that the witness was “suffering from or being treated for some variety of mental health issue” was speculative…  People v Rivera, KA 08-01758, 203, 4th Dept, 4-26-13

 

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Questions About Whether Trial Judge Properly Handled Jury Notes Sent Out During Deliberations Required Reconstruction Hearing

In a writ of coram nobis proceeding, the issue was whether the trial court’s handling of notes sent out by the jury during deliberations violated Criminal Procedure Law 310.30.  Because the record did not clearly indicate the contents of some of the notes, and therefore it was impossible to determine whether the court’s “core responsibilities” were violated (requiring reversal), the matter was sent back for a reconstruction hearing (over two dissents).  The Fourth Department explained the “jury-note” requirements and procedures as follows:

In People v O’Rama (78 NY2d 270)…, the Court of Appeals provided … detailed instructions for the handling of jury notes. The Court advised that, “whenever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel. Such a step would ensure a clear and complete record, thereby facilitating adequate and fair appellate review. After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses . . . [T]he trial court should ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to the potentially harmful information. Finally, when the jury is returned to the courtroom, the communication should be read in open court so that the individual jurors can correct any inaccuracies in the transcription of the inquiry and, in cases where the communication was sent by an individual juror, the rest of the jury panel can appreciate the purpose of the court’s response and the context in which it is being made” .

In subsequent cases, the Court made clear that not all O’Rama violations constitute mode of proceedings errors [requiring reversal in the absence of preservation].The only errors that require reversal in the absence of preservation are those that go to the trial court’s “core responsibilities” under CPL 310.30, such as giving notice to defense counsel and the prosecutor of the contents of a jury note … .  People v Kahley, KA 08-02494, 74, 4th Dept, 4-26-13

 

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